LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: EXTENDICARE – THE GIBSON 1955 Steeles Avenue East Willowdale, Ontario M2H 3P1
Transfer Applicant: CSH Gibson Home Inc.
Licence Number: 50202
Notice of Proposal: To REFUSE to transfer licence Dated September 14, 2006
The Proposal alleges that:
(a) Pursuant to section 6(2)(d) of the Liquor Licence Act (the “LLA”), the past/present conduct of the applicant, the officer or director and shareholder who owns or controls 10% or more of its equity shares, or a person having beneficial interest in the business of the applicant, or of a person having responsibility for the management or operation of the business of the applicant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty;
(b) Pursuant to section 6(2)(f) of the LLA, the applicant is carrying on activities that are in contravention of the LLA and the Regulations thereto.
Hearing: Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, 3rd Floor Toronto, Ontario M2N 0A4 March 1, 2007
Presiding Board Members: Kirsti Hunt, Vice – Chair Patricia McQuaid, Vice – Chair
Agent for the Registrar: Sujin Chan, student-at-law
Witnesses: Kristina Krause, AGCO Cassandra Platt, AGCO Raj Singh, AGCO
Exhibits: To the Motion #1 - E-mail from Mike Lavallee to R. Kulis of the AGCO dated February 28, 2007
To the Hearing #1 - Letter from D. Drivas (AGCO) to Robert Bowyer dated August 18, 2004 #2 - Letter from D. Drivas (AGCO) to Robert Bowyer dated October 25, 2004 #3 - Letter from Raj Singh (AGCO) to Robert Bowyer dated March 29, 2005 #4 - Letter from AGCO to Robert Bowyer (final notice) dated March April 6, 2006
The Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) held a hearing on March 1, 2007, pursuant to a Notice of Proposal dated September 14, 2006, to refuse to transfer a liquor licence to CSH Gibson Home Inc. for premises operating as or intending to operate as GIBSON RETIREMENT RESIDENCE (THE), 1955 Steeles Avenue East, Willowdale, Ontario, M2H 3P1, licence number 50202.
Preliminary Matters
As no one was in attendance on behalf of the licensee or transfer applicant, Ms. Chan made a motion to proceed with the hearing on an ex-parte basis.
In support of that motion Ms. Chan called two witnesses.
The first was Kristina Krause, Case Management Coordinator at the AGCO. Ms. Krause advised that she first sent a letter canvassing for hearing dates, to the parties on January 23, 2007. The letter was sent to Michael Lavallee whose name appeared on the Hearing Request Form. Mr. Lavallee did not respond. The hearing date was therefore set for March 1, 2007. A formal notification of hearing was then sent to Mr. Lavallee at the licensee’s address, by registered mail, on February 1, 2007. That registered letter was not returned. Ms. Krause advised that the hearings department file also indicated that Maria Nurmi, of the hearings department left a voice message at the number given on the Hearings Request Form, on February 22, 2007, to confirm that the hearing would take place on March 1st. Ms. Krause has had no contact with Mr. Lavallee prior to the hearing.
Cassandra Platt is the Hearings Accommodation Coordinator in the Hearings office. She spoke to Mr. Lavallee on his cell phone at approximately 9:40 a.m. on the morning of the hearing. She advised him that the hearing was scheduled to proceed and asked him if he would be attending. He responded that he would not be. He indicated that he sent an e-mail to Mr. Richard Kulis on February 28th asking for a postponement of the hearing, to which Ms. Platt responded that an adjournment request to the Board was necessary. Ms. Platt then told Mr. Lavallee that she would have Ms. Chan call within the next 10 minutes so that they could discuss the matter further and confirmed that Ms. Chan should call him on his cell phone. In her presence, Ms. Chan called that number twice and there was no answer.
Ms. Chan did, in her submissions regarding the motion, confirm that she called Mr. Lavallee and advised, in a voice message, that she would be proceeding with the hearing. Further, she filed with the Board a copy of an e-mail dated February 28, 2007, from Mike Lavallee to R. Kulis requesting a postponement. Ms. Chan also submitted that the application to transfer the licence was filed with the AGCO in August, 2004. The Notice of Proposal to refuse to transfer the licence for failure to provide documents required to support the transfer application was issued on September 14, 2006.
After hearing and reviewing the evidence, the Board found that the licensee/transfer applicant had received ample notice of the hearing date and had not filed a request for adjournment with the Hearings office. The Board therefore granted Registrar’s motion and ORDERED that the hearing proceed on an ex parte basis.
After careful review of the evidence and submissions from Ms. Chan at the hearing, the Board, for reasons set out below, REFUSES the application to transfer the licence received from CSH Gibson Home Inc.
Registrar’s Evidence
Raj Singh is a liquor licence officer with the AGCO since December 2004 and has had carriage of this file since that time. Through Ms. Singh’s testimony a series of letters were filed (Exhibits 1-4) wherein between August 18, 2004, and April 6, 2006, letters were sent to the transfer applicant from the licensing department requesting documentation required in order for the transfer application to proceed further.
Some documentation was received following the letter of August 18, 2004. A letter dated October 25, 2004, (Exhibit #2) was then sent requesting further documentation in support of the application. No response was received to this letter nor to further letters of March 29, 2005, (Exhibit #3) and April 6, 2006, (Exhibit #4), the latter was a final notice of incomplete application. In that letter, the transfer applicant was advised that a failure to complete the application would result in a Notice of Proposal to Refuse the Transfer. The applicant was given 20 days to respond. To date, none of the requested documentation has been received. As well, the application for an authorization to contract out the sale of liquor referenced in the letter of August 18, 2004, was never submitted to the licensing department.
Decision
The Board notes that the application was received by the AGCO on August 13, 2004. Some documentation was provided to the licensing department, upon request, later that month. However, despite further requests for information and documentation since that time, the transfer applicant has not responded. On the evidence, the licensing department has clearly stated that the documentation requested is necessary for the application to proceed further.
From the evidence, it is clear that the transfer applicant has declined to provide the necessary documentation despite having had ample time and opportunity to do so. As well, it troubles the Board that no application for authorization to contract out the sale & service of liquor has ever been submitted. The licensee of record is Extendicare Ltd.; however the letter of October 25, 2004, (Exhibit #2) suggests a sale to Chartwell Master Care LP, yet the transfer applicant is a different entity CSH Gibson Home Inc.
Ms. Chan in submissions requested that the application for transfer of the licence be refused, based on a finding pursuant to subsection 6(2)(d) or 6(2)(f) of the LLA. Based on the foregoing, specifically, the repeated nondisclosure of important documentation required for completion of the application between August, 2004, and April, 2006, the Board is satisfied that there are reasonable grounds for belief that the business will not be carried on in accordance with the law and with honesty and integrity so as to support a refusal to transfer the licence pursuant to section 6(2)(d) of the LLA. The Board makes no determination on the allegation of subsection 6(2)(f) given that there was no evidence in fact, led to support a finding that the applicant is carrying on activities in contravention of the LLA. The application is hereby refused.
DATED AT TORONTO THIS 12TH DAY OF MARCH, 2007.
PATRICIA MCQUAID, VICE – CHAIR KIRSTI HUNT, VICE – CHAIR
PM/sm